Volume 101 - Issue 5 Georgetown Law Journal

James Bond, Inc.: Private Contractors and Covert Action

This Note addresses the challenges and options arising from private contracting of U.S. government covert activities. I argue that, because of the difficulty of remedying ex post facto problems with these contracts, the government must limit the contracting out of such functions in the first place. Part I analyzes the restrictions in U.S. law that […]

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Beyond Individual Status: The Clear Statement Rule and the Scope of the AUMF Detention Authority in the United States

This Note argues that courts should apply the clear statement principle whenever the AUMF—or the NDAA 2012—is invoked to detain individuals arrested in the United States in indefinite military detention without trial, so long as their status as an enemy combatant is in dispute. The clear statement principle serves the purpose of the constitutional avoidance […]

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Regulatory Review, Capture, and Agency Inaction

This Article highlights the role of capture in providing a normative foundation for regulatory review of administrative action, which, at the federal level, is conducted by the Office of Information and Regulatory Affairs (OIRA) within the White House Office of Management and Budget (OMB). It also establishes a reform agenda to help bring the practice […]

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The Origins of the Privileges or Immunities Clause, Part III: Andrew Johnson and the Constitutional Referendum of 1866

This Article divides the events of 1866 into four phases. First, I discuss the early framing debates and the political rupture between congressional Republicans and President Andrew Johnson that occurred in the spring of 1866. Johnson’s March 27 veto of the Civil Rights Act and the congressional override were major public events and signaled what […]

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Federal Arbitration Act Preemption, Purposivism, and State Public Policy

The relationship between the Federal Arbitration Act (FAA) and state public policy has long been unsettled. According to some judges, scholars, and litigants, the FAA precludes courts from invalidating arbitration clauses under the contract defense of violation of public policy. However, in a practice that is impossible to square with that understanding of FAA preemption, […]

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Ineffective Assistance of Library: The Failings and the Future of Prison Law Libraries

The prison law library has long been a potent symbol of the inmate’s right to access the courts. But it has never been a practical tool for providing that access. This contradiction lies at the core of the law library doctrine. It takes little imagination to see the problem with requiring untrained inmates, many of […]

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